Above the law? Well, it depends on what you consider "the law." According to a Texas Court of Criminal Appeals (CCA) plurality, in Ex Parte Medellin: (1) an International Court of Justice (ICJ) decision (Case Concerning Avena and Other Mexican Nationalsfrom March 2004) and (2) presidential directive from GW Bush ordering states to comply with that ICJ decision, do not constitute binding federal "law"--therefore, the ICJ Avena decision (holding that the US denied the rights to consular notification and consultation in violation of Article 36 of the Vienna Convention to 49 Mexican nationals (including Jose Ernest Medellin) sentenced to die in Texas and other states) and Bush directive, do not preempt the Texas Code of Criminal Procedure, and the Texas CCA is in no way bound to review a death row inmate's case.

For these reasons, the CCA chose to follow Texas Code of Criminal Procedure Article 11.071 §5(a). This Article confines the court's authority to consider the merits or grant relief of a death row inmate's successive state habeas writ application to the limited instances when the inmate could not have previously presented the claim because the legal basis for the claim was unavailable. According to the CCA, the Bush directive and the ICJ's decision in Avenado not qualify as previously unavailable factual or legal bases for filing a successive writ. Here are the plurality and concurring opinions in Ex Parte Medellin. Full story from Texas Lawyer. . . [Michele Berry]